Herbert v. Placid Refining Co.Herbert v. Placid Refining Co.
- Reporters:
- ,
- Before:
- Lanier Judge., Edwards, Foil
LANIER, Judge.
This suit сumulates four causes of action by a discharged employee against his employer and a testing laboratory which had been retained by the employer. These causes of action are (1) breach of contract by the employer for discharging the employee for racial reasons in violation of
The plaintiff, Howard Herbert, was employed by the Placid Refining Compаny (Placid) at its refinery in Port Allen, Louisiana. Herbert‘s employment contract with Placid was for an indefinite term.
On August 15, 1985, Placid instituted an alcohol and drug testing program for its employees. Placid contrаcted with Laboratory Specialists, Inc. (LSI) to do the testing. On April 1, 2 and 3, 1986, LSI collected urine samples from all Placid employees present at the Port Allen facility on those dates (including Herbеrt). LSI tested the urine samples and the results were reported to Placid on April 9, 1986. LSI reported to Placid that Herbert‘s urine sample disclosed the presence of THC, the active ingredient in marijuana. On April 11, 1986, Herbert and nine other employees whose urine tested positive were interviewed by Placid‘s refinery manager and their employment was terminated.
NEGLIGENT TESTING BY LSI
In his only assignment of error,2 Herbert asserts the following:
The trial court erred detеrming [sic] that no material issue of fact existed as to whether or not LSI analyzed and reported appellant‘s urine sample in a reasonable manner.
A motion for summary judgment may be grantеd only if the pleadings, depositions, answers to interrogatories and admissions on file show that there are no genuine issues of material fact, and that the mover is entitled to judgment as a matter of law.
In Herbert‘s petition, cause of action (3) is entitled “NEGLIGENCE“, and the petition alleges, in pertinent pаrt, the following:
47.
That Laboratory Specialists, Inc., had a duty to Howard Herbert to analyze his body fluids in a manner that utilized State of the art technology and was fair and accurate.
. . . . .
49.
That Laboratory Specialists, Inc., failed to prevent melanin interference with their THC urinalysis because of inadequate laboratory methodology.
50.
That Howard Herbert‘s aforementioned injuries were the direct and proximate result of the breaches of duty owed by Laboratory Specialists, Inc., to Howard Herbert.
51.
That Howard Herbert suffered serious physical, emotional, psychological, and financial injury from sumaraily [sic] terminated by Placid Refining Company after allegedly testing positive for marijuana on urinalysis drug test administered, implimented, and interpreted by Laboratory Specialists, Inc., for Placid Refining Company.
It is uncontested in the record that Herbert‘s employment contract with Placid
Before analyzing the merits of Johnson‘s claims we must determine the nature of her cause of action. Although Johnson maintains on appeal that negligent administration of the polygraph examination was an independent tort, a parsing of her complaint and deposition testimony clearly demonstrates that she complains of the discharge itself, albeit based upon the test results. Thus, assuming for purposes of the summary judgment proceeding that the polygraph examinаtion was negligently administered, our inquiry focuses on whether Delchamps is liable to Johnson for its decision to terminate her employment.
[1] Louisiana‘s doctrine of employment-at-will is embodied in Artiсle 2747 of the Louisiana Civil Code which provides:
A man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing. The servant is also free to depart without assigning any cause.
Under this doctrine, both employers and employees are free to end the employment relationship at any time, and for any reason, without liability, provided that the terminаtion violates no statutory or constitutional provision and, obviously, that there is no contract of employment for a definite term. Brannan v. Wyeth Laboratories, Inc., 526 So.2d 1101, 1103-04 (La.1988); Pechon v. National Corp. Service, Inc., 234 La. 397, 100 So.2d 213 (1958).
[2] While urging several “public policy” arguments, Johnson makes nо claim that a constitutional or statutory provision prohibits Delchamps from discharging her as the result of a negligently administered polygraph examination. Nor does she claim that she and Delchamps had a contract of employment for a definite term. She perforce must concede that her employment relationship with Delchamps was at will, giving Delchamps the right to fire her for any reason—good, bad, or indifferent—or for no reason at all. See Gil v. Metal Service Corp., 412 So.2d 706 (La.App.), cert. denied, 414 So.2d 379 (1982) (at-will doctrine barred suit by employee discharged for refusing to commit an illegal act for his employеr).
(Emphasis added; footnote omitted.)
See also Directional Wireline Services, Inc. v. Tillett, 552 So.2d 1201, 1216 n. 9 (La.App. 1st Cir.), writs denied, 551 So.2d 1343 and 1344 (La.1989).
We find this rationale by our learned brothers in the federal appellate court persuasive and we adopt it as our own. In so doing, we affirm the summary judgment entered in favor of Placid, dismissing plаintiff‘s suit against it.
To analyze Herbert‘s negligence claim against LSI, we must examine the legal relations between the parties. It is undisputed factually that Placid contracted with LSI to perform the urine tests. It is not claimed that LSI had a contractual relationship with Herbert. Herbert did have a contractual (employment) relationship with Placid which was terminable at the will of either party, and Placid is not liable for the termination of that contractual relationship in this case. Thus, to prevail against LSI, Herbert must show some noncontractual (tort) duty flowing from LSI to himself.
This assignment of error is without merit.
DECREE
For the foregoing reasons, the judgment of the trial court is affirmed at Herbert‘s costs.
AFFIRMED.
EDWARDS, J., concurs in result.
EDWARDS, Judge, concurring in the result.
I agree with the portion of the opinion concerning defendant, Placid Refining Company. But, with reference to defendant, LSI, I am not prepared to say that LSI owes no duty to the employee. However, the trial court was correct in concluding no genuine issue of material fact exists.
Notes
On July 21, 1987, the court below granted LSI‘s Exceptions of No Cause Action as to Counts I, II, and IV. On September 22, 1988, the court below granted Placid‘s preemptory [sic] exceptions dismissing Counts I and IV.
There are no minute entries in the record before us to shоw this action by the trial court. Further, the sustaining of a peremptory exception raising the objection of no cause of action is a final (and appealable) judgment which must be in writing and signеd.